“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. ‘The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.’”
~Justice Samuel Alito, citing the late Justice Antonin Scalia, in writing the majority opinion of Dobbs v. Jackson.
Preserving the right to life: The Supreme Court’s monumental ruling on abortion
On Friday June 24th, the U.S. Supreme Court handed down what would be its most remarkable landmark decision of the 2021-2022 term and one of the most controversial cases of the Roberts Court. The case of Dobbs v. Jackson Women’s Health Organization went down as a major policy decision—prominently repealing both Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) by denying abortion as a constitutionally protected right. For supplementary reading about the Dobbs abortion decision, I highly recommend reading the review of this case in SCOTUSblog.
The anxiously awaited decision grew from a case involving a statewide ban on abortion in Mississippi prohibiting operations after the first 15 weeks of pregnancy. In March 2018, following the passage of the law, Mississippi's only abortion clinic had sued Thomas E. Dobbs, the State Health Officer of the Mississippi State Department of Health. The new state law was prevented from being enforced by lower courts imposing burdensome injunctions on the basis of Casey’s ruling to prevent states from banning abortion prior to fetal viability (usually the first 24 weeks of pregnancy). This was done on the false understanding that abortion was a protected right to female privacy construed under the Fourteenth Amendment of the Constitution. The Dobbs case was shrouded in national controversy in the months leading up to an official opinion being rendered, due to an unprecedented leak of Justice Samuel Alito’s draft opinion, published by Politico in May.
The leak by an anonymous judicial branch officer sent shockwaves throughout the national media and sparked public outcry. Such a public leak of a written draft opinion by a Supreme Court Justice—material that is regarded as confidential until a final decision by the Court is rendered—was spontaneously published as a Politico piece. The draft opinion was released approximately seven weeks prior to the official decision by the Court on Friday June 24th, with the article acknowledging that the Court’s final decision would likely be rendered within two months of the leak. Such a breach of confidentiality in the legal process of Justices examining a pending case during conference has never occurred in the history of the Supreme Court. The Supreme Court was conceived by the Founding Fathers to be a branch of government that should be insulated from the whims of partisan politics. It was intended to operate with a veil of confidentiality when Justices render decisions that should be unrestrained by outside political influences on the right and left. The unexpected, leaked opinion completely overrode this traditional perception of the Court’s operations, removing its veil of confidentiality and pointing to the larger issue of there being a usurper of established legal procedure within the nation’s highest court. It also placed a target on the backs of the six conservative Justices who were likely to overturn Roe based on the language of the draft opinion.
Who was the leaker of a draft of the Dobbs abortion decision?
According to various legal analysts, politicians, and reporters who actively examine the Court, the leaker was most likely either a close staffer to one of the Democrat-appointed Justices or one of their twelve clerks. The leak was likely a retaliatory trap used to ensnare the conservative Justices as they made the stance to declare abortion unconstitutional. Despite these predictions, there has yet to be any concrete evidence pointing to the identity of the leaker. Among concerned elected officials, Senator Ted Cruz boldly predicted that “it is likely to be someone who is a hard partisan and who was willing to burn the place down because he or she was so upset about what happened,” Cruz told host Michael Knowles in an interview. “If I were to guess the most likely justice for whom the law clerk is clerking is Sonia Sotomayor … because she is the most partisan of the justices and so she’s the most likely to hire wild-eyed partisans as clerks. I have no evidence of that, I’m just making an inference.”
Such an egregious action will be branded in American history as a heinous disregard for the sanctity of the Supreme Court’s opinion-making process. An official investigation into this scandal was launched by Chief Justice John Roberts and is currently being led by the Marshall of the Court. If the findings of the investigation ultimately reveal who the traitor is, he or she will be fired from their position and will likely be disbarred from ever working again in the law. The public stigma against such a person for committing this infamous betrayal of the American judiciary will be extremely high as well.
In comparing the results of the final decision on the merits by the Court in June to the initial draft opinion, much has remained the same. The five Republican-appointed Justices—Thomas, Gorsuch, Kavanaugh, Barrett, and even Roberts—maintained support for Justice Alito’s opinion, fostering a 6-3 decision along ideological lines. Chief Justice Roberts refrained from ruling with the liberal Justices on Dobbs, agreeing with the 15-week Mississippi abortion ban, opting only to write a concurring opinion that suggested his disapproval with how both Roe and Casey precedents were overturned. Other notable similarities are that both the draft and final Dobbs opinions define the Roe ruling as “egregiously wrong” from the time it was decided nearly 50 years ago to modern day. Both opinions assert that abortion is out of context with the U.S. Constitution and that it is strictly a social issue best left to the 50 state legislatures to handle. Justice Alito’s reasoning in the opinion to overturn Roe and deny abortion any protection under the Constitution also remained the same, with a key concluding excerpt reading,
“We end this opinion where we began. Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”
Post-Roe America: The control of abortion and the preserving of life are returned to the 50 states and to the people
With the monumental decision by the Supreme Court on the scourge of abortion and the overturning of 50 years of reliance by the abortion industry on dubious constitutional protections, a new era begins for the proponents of pro-life policies. Across the 50 states, the issue of abortion is now strictly decided by state legislatures and ratified into law by elected governors, as it was prior to the gravely flawed Roe decision—which usurped control over abortion from the individual states and placed it in the hands of the federal government.
As Justice Alito’s opinion in Dobbs reminds, the issue of abortion was historically maintained by the people, with legal decisions about its practice or prohibition handled through political discourse among elected state officials. This was the norm for the first 185 years after the U.S. Constitution was adopted in 1787 until 1973, when nine unelected judges deemed it necessary to weigh in on a purely social issue previously managed at the state level. They made the egregious error of granting constitutional privilege to a controversial practice that is mentioned nowhere in America’s founding documents. The misperceived “right” to an abortion is not even remotely implied under any of the Bill of Rights protections, nor is it safeguarded as an individual right to liberty under the Fourteenth Amendment’s Substantive Due Process clause. But this did not stop the Court from inventing a broad protected right to abortion in Roe, ending the longtime legal authority of states to govern its legality.
With the modern Court finally righting this 49-year wrong, the current landscape of abortion rights across certain states stands to unfold dramatically in the coming years. The March for Life organization, in partnership with the Christian conservative organization Family Policy Alliance, provides educational information on their website pertaining to the abortion battle following the Dobbs v. Jackson opinion. With the end of Roe, 21 states are prepared to launch pro-life measures to greatly deter the ability of anyone to perform an abortion. Many of these states have already ratified such measures into law, the most notable examples being Oklahoma, which passed the nation’s strictest abortion law a month before the Dobbs decision, and Texas, which banned abortion after six weeks of pregnancy through its “Texas Heartbeat Act” in September 2021. This law provided the model for Oklahoma’s restriction.
In the months following Texas’s abortion ban, there was a reported surge in abortions in Oklahoma, with people fleeing Texas to patronize abortion facilities in Oklahoma that soon saw a 2,500% increase. Oklahoma’s present law contains a trigger ban to immediately outlaw abortion in the event Court overturned Roe, which was prepared just two weeks after the leaked draft opinion became public. In addition to this, Texas’s trigger law, which provides more severe civil and criminal penalties for those who violate its strict abortion ban, is set to go into effect August 25th. Other states providing robust protections to the unborn following the Roe decision include Georgia, South Carolina, Tennessee, Arizona, and Utah. Abortion is now completely banned (with no exceptions) in eight states, providing a developing trend toward protecting the right to life.
Beyond the 21 states providing substantial protections to children in the womb (and respect for parental rights), there are 19 states that are working to enact pro-life legislation. States in this category also possess trigger-bans that are poised to be activated when the opportune time presents itself. Among these are states that have new forms of restrictions being readied for implementation, including Idaho, Tennessee, and Louisiana. Idaho’s ban is set to go into effect on the same day as Texas’s modified ban on August 25th, and the ban virtually outlaws abortion in its entirety, with the slight exceptions of rape, incest, and protection for the mother’s life.
For these states, the Supreme Court’s ruling on the unconstitutionality of Roe was merely the first act in a domino effect to trigger existing policies that are later to be enacted into law to prohibit abortion. Thirteen states had already prepared trigger-bans to go into effect prior to the Dobbs ruling, with three of these states implementing bans immediately after the ruling was handed down. Many of the states in these categories impose a good deal of restrictions on abortion, but, according to the March for Life website, have far to go before their laws provide a full reflection of the value of human life. States in this area have a responsibility to fight as hard as necessary to revise existing restrictions in a manner that is completely prohibitive of abortion.
The final category of states is those that provide very little to no restrictions against the terrors of abortion and infanticide. Abortion clinics in these states have the greatest latitude to conduct their abhorred procedures against defenseless infants in the womb. Some of these states harbor laws that provide a guaranteed “right to choose” for women to have complete autonomy in aborting their child without any legal or procedural barriers. These states provide access to abortion even though Roe has been abolished and its broad abortion protection deemed unconstitutional. There are presently 20 states in this danger zone category, and the March for Life designates the legislative fight in these states to adopt pro-life protections for infants an uphill struggle. Some of the states in this category (most of which are heavily Democrat) include Illinois, New York, California, Washington, Nevada, and Colorado.
Among the most radically pro-choice on this list is Colorado, with the Democrat Governor, Jared Polis, issuing an executive order that codifies abortion, creating a “fundamental right” to abortion by denying any rights or hope for the unborn in that state. The law dehumanizes an embryo and fetus, deeming these as not constituting a human life form. It denies basic protections to the unborn, while emboldening radical abortion activists to encourage migration of women seeking abortions to states like Colorado. Another notorious pro-choice state that has worked to codify abortion is New York, which under Governor Cuomo passed a law that safeguarded abortion in 2019 should Roe ever be overturned.
Restoring the Right to Life: Looking forward in the fight against abortion
With the Supreme Court handing down one of the greatest, most impactful decisions in American history, the ramifications for Dobbs to pave the path for dismantling the remnants of the abortion industry are considerable. Many state legislatures across America are hard at work passing laws that strengthen their already anti-abortion statutes. When assessing the state-by-state landscape regarding pro-life vs. pro-choice polices, the battle over abortion seems to currently favor safeguarding the right to life. Following the Dobbs decision, more and more states are gradually imposing restrictive measures to outlaw abortion either substantially or completely, and other states are fighting hard to pass incremental measures to forbid certain forms of abortion. Still, a host of states are clinging hard to the wicked vestiges of Roe, seeking to carry out its legacy of infanticide by codifying the “right” to abort unborn children.
Looking at the data provided by the March for Life and Family Policy Alliance, we can see that there are at least 30 states with some form of restriction on abortion, whether that is substantial or minor, as compared to the 20 states that provide little or no restriction on abortion. Thus, the majority of states do not completely tolerate abortion and are gradually imposing measures that restrict abortion access up to the moment that a heartbeat is detected. In a post-Roe America, let us only hope that this trend eventually transforms into a full-scale push to completely outlaw abortion across all 50 states.
The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.